Monday, July 22, 2013

OSHA orders reinstatement for lead-safety whistleblower

The Occupational Safety and Health Administration (OSHA)
last Wednesday ordered a Bedford Heights, Ohio, restoration company to
reinstate a former employee and awarded him $161,000 in a whistleblower
protection case over a lead-paint abatement renovation.

Vernon Frye was a Project Supervisor for Coit Services of
Cleveland, Ohio. He has US EPA certification to perform and supervise lead-safe
renovations.In December 2011, Frye was
supervising the restoration of a flood-damaged home in Shaker Heights, Ohio.
The property was older than 1978 when lead-based paint was banned. Therefore,
it required the use of lead abatement practices such as HEPA machines to
collect airborne paint particles, waste collection in sealed bags, verified
cleaning procedures and compliance record-keeping.

Frye reported to his supervisor, Mr. Mark Iwanycki, that
the staff had refused to follow his directions to comply with these EPA rules
for lead abatement. Coit sent Frye home the day after he raised these concerns,
and then fired him a few days later.Coitʼs president,Harvey Seigel,
falsely claimed that Frye had resigned.

Frye filed a whistleblower retaliation complaint with
OSHA. OSHA investigates lead paint whistleblower claims under the Toxic
Substances Control Act (TSCA), 15 U.S.C. § 2622, and the Clear Air Act (CAA),
42 U.S.C. § 7622. These laws prohibit employers from retaliating against
employees for any protected activities that try to further the purposes of
these laws.

OSHA concluded that Frye, ʻʻengaged in protected activity
under TSCA when he raised concerns to [Coit] that they were not properly
following EPA required practices regarding lead abatement.ʼʼ OSHA ordered Coit
to ʻʻreinstate Complainant to his former position with all the seniority, pay,
benefits, and rights he had prior to discharge.ʼʼ OSHA also awarded Frye
$161,000 in back pay, attorneysʼ fees and compensatory damages.

ʻʻOSHAʼs order to reinstate Vernon Frye protects the
right of every employee to stand up for public safety,ʼʼ said Fryeʼs attorney,
Neil Klingshirn of the Akron firm of Klingshirn & Fortney. ʻʻThe federal
environmental laws are outdated and need to be modernized,ʼʼ said Fryeʼs
attorney, Richard Renner of the Washington, DC, firm of Kalijarvi, Chuzi,
Newman & Fitch. ʻʻFor example, these laws require whistleblowers to file
their complaints within thirty (30) days while modern laws allow 180 days to
file a complaint,ʼʼ Renner added. ʻʻFrye was fortunate to find where and when
to file a complaint.ʼʼ Airborne dust of lead paint can cause nervous system
damage, stunted growth, kidney damage, and delayed development. It is dangerous
to children because it tastes sweet. Once children to put lead dust in their
mouths, they are likely to continue consuming more. Lead paint is also
dangerous to adults and can cause reproductive problems in men and women. The
USEPA's America's Children and the Environment, p. 19, reports that 15% of
America's children under six years old lived in a home with lead paint dust.1
ʻʻI am so pleased for this decision,ʼʼ Frye says.ʻʻI hope other workers can find the
courage to stand up for whatʼs right without the fear of retaliation.ʼʼ As a
matter of policy, OSHA will not release the names of whistleblowers. Frye,
through his attorneys, chose to release the OSHA determination in his case.